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RANT: Governments raise yet another UN threat to ICANN

Kevin Murphy, October 31, 2016, 16:43:36 (UTC), Domain Policy

ICANN’s transition away from US government oversight is not even a month old and the same old bullshit power struggles and existential threats appear to be in play as strongly as ever.

Governments, via the chair of the Governmental Advisory Committee, last week yet again threatened that they could withdraw from ICANN and seek refuge within the UN’s International Telecommunications Union if they don’t get what they want from the rest of the community.

It’s the kind of thing the IANA transition was supposed to minimize, but just weeks later it appears that little has really changed in the rarefied world of ICANN politicking.

Thomas Schneider, GAC chair, said this on a conference call between the ICANN board and the Generic Names Supporting Organization on Thursday:

I’m just urging you about considering what happens if many governments consider that this system does not work. They go to other institutions. If we are not able to defend public interest in this institution we need to go elsewhere, and this is exactly what is happening currently at the ITU Standardization Assembly.

This is a quite explicit threat — if governments don’t like the decisions ICANN makes, they go to the ITU instead.

It’s the same threat that has been made every year or two for pretty much ICANN’s entire history, but it’s also something that the US government removing its formal oversight of ICANN was supposed to help prevent.

So what’s this “public interest” the GAC wants to defend this time around?

It’s protections for the acronyms of intergovernmental organizations (IGOs) in gTLDs, which we blogged about a few weeks ago.

IGOs are bodies ranging from the relatively well-known, such as the World Health Organization or World Intellectual Property Organization, to the obscure, such as the European Conference of Ministers of Transport or the International Tropical Timber Organization.

According to governments, the public interest would be served if the string “itto”, for example, is reserved in every new gTLD, in other words. It’s not known if any government has passed laws protecting this and other IGO strings in their own ccTLDs, but I suspect it’s very unlikely any have.

There are about 230 such IGOs, all of which have acronyms new gTLD registries are currently temporarily banned from selling as domains.

The multi-stakeholder GNSO community is on the verge of coming up with some policy recommendations that would unblock these acronyms from sale and grant the IGOs access to the UDRP and URS mechanisms, allowing them to reclaim or suspend domains maliciously exploiting their “brands”.

The responsible GNSO working group has been coming up with these recommendations for over two years.

While the GAC and IGOs were invited to participate in the WG, and may have even attended a couple of meetings, they decided they’d have a better shot at getting what they wanted by talking directly to the ICANN board outside of the usual workflow.

The WG chair, Phil Corwin of the Internet Commerce Association, recently described IGO/GAC participation as a “near boycott”.

This reluctance to participate in formal ICANN policy-making led to the creation of the so-called “small group”, a secretive ad hoc committee that has come up with an opposing set of recommendations to tackle the same IGO acronym “problem”.

I don’t think it’s too much of a stretch to call the the small group “secretive”. While the GNSO WG’s every member is publicly identified, their every email publicly archived, their every word transcribed and published, ICANN won’t even say who is in the small group.

I asked ICANN for list of its members a couple of weeks ago and this is what I got:

The group is made up of Board representatives from the New gTLD Program Committee (NGPC), primarily, Chris Disspain; the GAC Chair; and representatives from the IGO coalition that first raised the issue with ICANN and some of whom participated in the original PDP on IGO-INGO-Red Cross-IOC protections – these would include the OECD, the UN, UPU, and WIPO.

With the publication two weeks ago of the small group’s recommendations (pdf) — which conflict with the expect GNSO recommendations — the battle lines were drawn for a fight at ICANN 57, which kicks off this week in Hyderabad, India.

Last Thursday, members of the GNSO Council, including WG chair Corwin, met telephonically with GAC chair Schneider, ICANN chair Steve Crocker and board small group lead Disspain to discuss possible ways forward.

What emerged is what Crocker would probably describe as a “knotty” situation. I’d describe it as a “process clusterfuck”, in which almost all the relevant parties appear to believe their hands are tied.

The GNSO Council feels its hands are tied for various reasons.

Council chair James Bladel explained that the GNSO Council doesn’t have the power to even enter substantive talks.

“[The GNSO Council is] not in a position to, or even authorized to, negotiate or compromise PDP recommendations that have been presented to use by a PDP working group and adopted by Council,” he said.

He went on to say that while the GNSO does have the ability to revisit PDPs, to do so would take years and undermine earlier hard-fought consensus and dissuade volunteers from participating in policy making. He said on the call:

By going back and revisiting PDPs we both undermine the work of the community and potentially could create an environment where folks are reluctant to participate in PDPs and just wait until a PDP is concluded and then get engaged at a later stage when they feel that the recommendations are more likely adopted either by the board or reconciled with GAC advice.

He added that contracted parties — registries and registrars — are only obliged to follow consensus policies that have gone through the PDP process.

Crocker and Disspain agreed that the the GAC and the GNSO appear to have their hands tied until the ICANN board makes a decision.

But its hands are also currently tied, because it only has the power to accept or reject GNSO recommendations and/or GAC advice, and it currently has neither before it.

Chair Crocker explained that the board is not able to simply impose any policy it likes — such as the small group recommendations, which have no real legitimacy — it’s limited to either rejecting whatever advice the GAC comes up with, rejecting whatever the GNSO Council approves, or rejecting both.

The GNSO WG hasn’t finished its work, though the GNSO Council is likely to approve it, and the GAC hasn’t considered the small group paper yet, though it is likely to endorse it it.

Crocker suggested that rejecting both might be the best way to get everyone around a table to try to reach consensus.

Indeed, it appears that there is no way, under ICANN’s processes, for these conflicting views to be reconciled formally at this late stage.

WG chair Corwin said that any attempt to start negotiating the issue before the WG has even finished its work should be “rejected out of hand”.

With the GNSO appearing to be putting up complex process barriers to an amicable way forward, GAC chair Schneider repeatedly stated that he was attempting to reach a pragmatic solution to the impasse.

He expressed frustration frequently throughout the call that there does not appear to be a way that the GAC’s wishes can be negotiated into a reality. It’s not even clear who the GAC should be talking to about this, he complained.

He sounds like he’s the sensible one, but remember he’s representing people who stubbornly refused to negotiate in the WG over the last two years.

Finally, he raised the specter of governments running off to the UN/ITU, something that historically has been able to put the willies up those who fully support (and in many cases make their careers out of) the ICANN multistakeholder model.

Here’s a lengthier chunk of what he said, taken from the official meeting transcript:

If it turns out that there’s no way to change something that has come out of the Policy Development Process, because formally this is not possible unless the same people would agree to get together and do the same thing over again, so maybe this is what it takes, that we need to get back or that the same thing needs to be redone with the guidance from the board.

But if then nobody takes responsibility to — in case that everybody agrees that there’s a public interest at stake here that has not been fully, adequately considered, what — so what’s the point of this institution asking governments for advice if there’s no way to actually follow up on that advice in the end?

So I’m asking quite a fundamental question, and I’m just urging you about considering what happens if many governments consider that the system does not work. They go to other institutions. They think we are not able to defend public interest in this institution. We need to go elsewhere. And this is exactly what is happening currently at the ITU Standardization Assembly, where we have discussions about protection of geographic names because — and I’m not saying this is legitimate or not — but because some governments have the feeling that this hasn’t been adequately addressed in the ICANN structure.

I’m really serious about this urge that we all work together to find solutions within ICANN, because the alternative is not necessarily better. And the world is watching what signals we give, and please be aware of that.

The “geographic names” issue that Schneider alludes to here seems to be a proposal (Word .doc) put forward by African countries and under discussion at the ITU’s WTSA 2016 meeting this week.

The proposal calls for governments to get more rights to oppose geographic new gTLD applications more or less arbitrarily.

It emerged not from any failure of ICANN policy — geographic names are already protected at the request of the GAC — but from Africa governments being pissed off that .africa is still on hold because DotConnectAfrica is suing ICANN in a California court and some batty judge granted DCA a restraining order.

It’s not really relevant to the IGO issue, nor especially relevant to the issue of governments failing to influence ICANN policy.

The key takeaway from Schneider’s remarks for me is that, despite assurances that the IANA transition was a way to bring more governments into the ICANN fold rather than seeking solace at the UN, that change of heart is yet to manifest itself.

The “I’m taking my ball and going home” threat seems to be alive and well for now.

If you made it this far but want more, the transcript of the call is here (pdf) and the audio is here (mp3). Good luck.

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Comments (8)

  1. Volker Greimann says:

    Actually, they are saying: “I am going to take YOUR ball and go home (if we will play by my rules)!”
    I also do not see the risk to public interest if itto.shoe or even who.doctor were to be available for registration. I doubt anyone will think of the Int Org first seeing these names.

  2. James Bladel says:

    Hi Kevin-

    Just a note that while the Curative Rights PDP is ongoing, the Board could still approve the remaining recommendations from the original GNSO PDP, which Council approved in November 2013.

  3. John says:

    We told you so…

    > “The “I’m taking my ball and going home” threat seems to be alive and well for now.”

    This was always an empty threat repeated as a mantra to brainwash and sell people on the “transition.” Except for a brief interlude where some tried to reverse it and claim the nations did not want the “transition.” Which was then reversed back to the original.

    Volker above is correct about the real threat:

    “I am going to take YOUR ball and go home”

  4. Whatever the risks and costs of opening up IGO acronyms to general registration, those drawbacks pale in comparison to

    (1) the risk of destabilized internet governance, thanks to this childish brinksmanship;

    (2) the cost of paying all these bureaucrats and lobbyists to fly around the planet debating the question.

    They could save money by simply purchasing all IGO acronym domains, extant and hypothetical, instead of wasting their constituencies’ money on airline tickets, hotel rooms, and salaries.

  5. Philip Corwin says:

    For the record, I am one of two Co-Chairs of the CRP WG. The other is Petter Rindforth, an IPC member from Stockholm.

  6. Until there is a way to pull names off the list, expansion should not be considered.

    The IGO list is chainsaw surgery where more elegance is required. The approach to rights protection, while well intended, is simply too proclamatory and truly serves very narrow interests with excessive entitlements, is not in the public interest.

    I again point towards the string LAS being on this ‘small group’ list – and the bright line case of how completely absurd that LAS be blocked in ALL nTLDs.

    There is no reason under any circumstances that someone might visit the domain LAS.VEGAS and be confused or misled to believe they are reaching the League of Arab States.

    And worse, for clear case examples like this, there is not even a way to obtain exception.

    The public interest being served through the mechanisms in ICANN typically delivers a result – which while nobody loves, there exists a robust equity to dissatisfaction over outcomes – in a transparent process – and then the participants accept the result and outcome.

    A more important point is that if people can just circumnavigate all the processes, no matter who they are, they completely undermine the integrity of the organization and really disrespect the public interest.

  7. Thomas Schneider says:

    Dear writer,

    If you think that Intergovernmental Organisations (IGOs) are “obscure” institutions that are of no use for the public, then you may ignore that IGOs are funded by citizens’ and businesses’ tax or voluntary money and – if managed properly – spend these resources for issues of public interest such as public health, labor practices, food security, peace-keeping operations, containment of weapons proliferation, sustainable economic and social development and reconstruction, trade and commerce standards, children’s rights, refugees, disaster relief, fundamental scientific research and other public policies.

    You may also ignore that there are many examples of abuse cases where criminals use the names or acronyms of IGOs and other institutions with similar goals trying to get money by pretending to be an IGO or other institutions like the Red Cross that are funded for helping others in need.

    IGOs benefit from legal protection under the Paris convention (which is implemented differently in different jurisdictions – happy to provide more details for those who want to know more.)

    In order to try and get some of the “inaccuracies” in this article a little closer to factual reality, here’s a few things that merit to be recalled:

    Since the beginning of the new gTLD process, governments in their capacity as advisors to the ICANN board on public policy issues have repeatedly issued consensus advice to the ICANN board to asking for adequate protection of IGOs against abuse of their names and acronyms before releasing new gTLDs.

    A coalition of IGOs had participated in the GNSO’s policy development process, but have not been able to make their voices heard in order to get the GNSO to adopt recommendations that were – in the view of governments and IGOs – adequately protecting the public interest related to IGOs.

    A large number of (public) letters and other forms of communications testify this exchange between governments and IGOs and different parts of ICANN.

    In response to the GAC’s reiterated commitment to actively work with ICANN to find a workable and timely way forward, the ICANN Board, in a letter to the GAC of 6 June 2013, said it “would like to propose that the GAC and a small number of Board New gTLD Program Committee members and ICANN staff begin a dialogue on the issues raised by the Board”.

    This led to the creation of the so called “small group”, that has never been understood by the GAC to e a “secretive” committee trying to bypass any existing processes, but was meant to be a space that allowed to work informally to identify a pragmatic basis of common ground that could – once accepted by all – be fed into the formal processes.

    A number of IGOs and GAC members have participated in good faith in this informal exercise together with some Board members and people from ICANN staff including some of which where supporting the GNSO working group on the issue.

    I personally did this in the assumption that all relevant parties were informally linked to this process and in the hope that this would contribute to finding a solution for this issue.

    Also, the GAC has never made a secret about this and repeatedly referred to activities and progress in the small group in its communications. Unfortunately, the work on the IANA transition kept the Board, ICANN staff and the rest of the ICANN community very busy, and despite repeated urges from the GAC and the IGOs to not lose track, this informal process took much longer than initially expected.

    Finally, it is important to remember that the Board had, on 30 April 2014, adopted only the GNSO Council’s policy recommendations on IGO-INGO protections that were not inconsistent with the GAC’s advice. It has up to now, neither accepted nor rejected neither GAC advice nor the GNSO recommendations in conflict with it. But the Board’s NGPC had, in its letter of 16 June 2014, informed the GNSO that it was “considering available options to reconcile the differences at issue, including recommending that the ICANN Board reject the conflicting GNSO policy advice (pursuant to the procedure established in the Bylaws). However, before the NGPC recommends any course of action, the NGPC wanted to provide an update to the GNSO to highlight the concerns, and to give the GNSO an opportunity to consider modifying the elements of the approved policy recommendations in accordance with the procedure established in the GNSO Operating Procedures.”

    Throughout all this time, the GAC and the IGOs have been patiently trying to cooperate within the ICANN multistakeholder structure and offered compromises in the hope to find a solution acceptable to all on this issue.

    There would be a lot more to say, but I stop here for the time being just adding that the GAC is still hoping that such a solution can be found in the near future and is looking forward to a constructive dialogue with the GNSO and the Board in Hyderabad.

    Thank you for your attention.

    • Kevin Murphy says:

      Thanks for the comment Thomas.

      As I said on Twitter, I’ll gladly correct any inaccuracies. Just let me know what I wrote that was incorrect.

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